Who owns my email?

If the ISP industry wants to take the position that email is personal
property, they are saying they have the ability to declare an interest
in that piece of property, and to seize it. As a business you might do
this when you have a billing dispute with a consumer. However, these
liens tend to be circumscribed in legislative structures: the business
that is exercising the lien has a responsibility to take good care of
goods in the meantime to ensure that they aren't damaged, that they
don't depreciate in value.

The problem with this is that email is person-to-person communication.
It is in the nature of a communication that you can't put it 'on the
shelf' without depreciating its value. As is the legal requirement for
a car mechanic's lien, the mechanic can hang on to your car but must
keep it well stored during that time to ensure that the loss in value to
your car is negligible. When you do get your car back, you may have
been deprived by not having use of it, but you do get the value that was
stored.

Communications are a very different creature: what is the value of an
invitation to contact a producer about a job opening? Communication is
very time-sensitive in its value, whether it's a bill, or a notice that
your favourite store has a sale on, or an invitation to a party. The
value of a communication lies, not in themselves, but in the actions
that arise from them. It's like a five-cent bolt that in itself is just
worth a nickel, but if it's being couriered somewhere because you need
to put it into the plane before the plane can fly, the actual
consequences of it not arriving are much more than five cents.

Communications do, much more often than goods, fall into under the
circumstance where the value at stake to the parties goes beyond the
apparent value of what the ISP is actually holding onto. What is the
value of a piece of email vs. what is the value that might flow to the
sender or the recipient? This is why the application of the rules
around property is questionable. They may be useful to examine how
repairers and storers and others are required to carry on their
activities when they try to assert these sorts of liens. But you must
come back to the question of is it even proper to treat a communication
under this kind of model?

Conceptually, what the ISPs want to do is similar to a 'carrier's lien':
a trucking company says, "You haven't paid me for what I'm shipping."
The Uniform Liens Act contains a well accepted doctrine that there are
services that you provide in respect of goods that add value to the
goods - and in this way become part of the good. This includes
repairing a good, storing it, and transporting it. That's why it may be
reasonable in those instances for this kind of business to use
possession of the good to try to enforce payment. Generally speaking,
if you have a dispute with a business and they want payment from you,
then off to collection agencies and/or court they go. Ordinarily they
can't just hold on to your property. What makes it special in certain
cases is that a business can hold on to your property it's because they
provided a service that you requested with respect to that specific
piece of property and the service is now bound up in the value of that
property.

What's interesting is that all of these regimes for goods that recognize
liens of this kind are that the liens are not created by contracts,
they're created by statutes. The liens and their statutory regimes
include dispute settlement processes. For example: you have a dispute
with your repairer about a $500.00 car repair bill. However, your car is
worth $12,000.00. The repairer hangs on to your car in your dispute
over the payment which means you're subjected to $12,000 worth of
pressure over $500. The safety valve that legislative regimes offer for
liens in this case is called `payment into court': you pay the $500 into
court, so the issue is no longer that you are not willing to pay the
bill, the issue is reduced back down to $500, not $12,000. You have
your car back and you and your repairer continue to argue, but now it's
clear you're arguing about the $500. Plus, you're not just stuck dealing
with the repairer -- there's a process for getting to a third party to
examine and assist with the dispute.

This is the Australian Telecom Industry Ombudsman model: in a payment
dispute with your ISP, the customer pays the disputed amount to the TIO
to get their email back then argues the dispute through that office.
This model of how goods are handled is a very widespread and
longstanding system for how to resolve disputes of this kind over goods.
This is why there is Uniform Legislation outlining how it should be
done. Still, this doesn't address the issue of whether you think, as a
communication, email should be subject to seizure at all.

We should always wary in the internet realm of overworking analogies to
the material world. People always want to say, "Well, it's just like
this," but the truth is it's never just like that --- every analogy falls
down somewhere. However, at the higher level of principle, the model
that's evolved for disputes around goods is put in place to protect both
parties. I can see the ISPs position that, like a carrier of goods,
they have provided value that's intrinsically bound up in the email in
transporting it from A to B. There's a certain logic here. But if you
follow that logic through to the end of the road, you get to the core
issue; should the customer be left arguing a bill that may be worth less
in value than the value of the email, and its consequences, without
resort to a third party? More importantly, if generally it's the
responsibility of the party that's holding on to something to ensure
that it doesn't degrade in value, can you meet that responsibility with
respect to a communication? If you can't, then the whole application of
this model starts to fall down.

My lawsuit:

The time has come for these and other interpretive arguments to be
addressed by the courts. From a business perspective, we are seeing
legislation passed across Canada that advances the use of email further.
One example is the business community wanting to push the adoption of
electronic billing. They wish to be able to rely upon the fact that
'you're now 30 days past due on your last bill' and that infrastructure
requires that the business community be able to rely that courts will
accept that when you have emailed things to people they have been
received. It's ironic that it would be a consumer that was getting
behind in their bills who would be the consumer who was having their
email account suspended.

Throughout common law courts there is a willingness to look into the
propriety and conscionability of terms that are in contracts of
adhesion. They're more willing to look at the question of 'is that just
a fundamentally unfair term?' By contrast, if the two parties actually
were dickering back and forth and the contract were written by the two
of them together, the court would be less willing to look into the terms
of the contract.

With the way email has entered our lives we need to think more about
this routine policy and practice of ISPs collecting and withholding
email and ask what the right principles to apply to it are. There are
some 10 billion person-to-person emails sent every day worldwide. I
think it's time for the law to catch up with this reality and to
determine, secure and protect the legal status of email communication.

In my situation the critical information about account suspension, that
the email address would stand open without my having access to it,
wasn't disclosed to customers of Inter.net Canada Ltd in their Terms of
Service. It wasn't available until after I filed my complaint with the
Privacy Commissioner and the company changed their ToS. If customers
don't know it's happening, they can't ask the questions. My
understanding, from the limited amount of direct research I have done,
and from the Canadian Association of Internet Providers (CAIP), is that
this is standard practice in the industry. When I called ISP's to ask
about their policy and practice with regard to this, it was very
difficult to get a clear answer. Often sales reps and their supervisors
seemed to genuinely not know about their policy in this and I was often
given incorrect information. In a number of cases I had to contact the
regulatory law department and speak to their lawyers. So, unless you
spent hours and days trying to get answers to questions that only
lawyers at many ISPs can answer, you don't have much of an option for
taking your business elsewhere. Though this seems to be changing: one
of the largest ISPs in Canada, Sympatico, has recently discontinued this
policy. I also understand that you can access your Rogers@Home email
from a remote computer if they cut you off.

In the weeks after it happened, I received an email response to my
complaint from the Chairman of the Board of Directors of CAIP. He
stated that his own ISP company did this routinely, though they would
give the email back if the customer asked for it. He described it as a
way to 'nudge' the customer for payment. I was also told the following
by a VP of Marketing at a large ISP: 'Nancy, you have to understand the
business perspective in this situation. When an account goes into
arrears we want two things: 1) to collect our overdue money, and 2) to
keep the customer who has great value to us. If we shut down their
account and bounced all their email, what is the incentive on the
customer to pay us? They won't, they'll simply not pay their bill and
go down the street to the next ISP for their service.' I understand the
industry refers to this problem as 'churn'. Despite the usefulness of
this policy as an account resolution tool, I would suggest a 'nudge'
might be when you can no longer send email or surf the net - but taking
customer's email is a great big whack on the head.

The ISP industry argues hard against any Government rules and
regulation, insisting that market forces make everyone behave well.
However, five months after I filed my complaint with the Federal Privacy
Commissioner, Inter.net Canada Ltd. had their lawyer, Karl Delwaide of
Fasken Martineau DuMoulin, email me a letter stating that because I had
brought my complaint "to the attention of various associations or
governmental bodies such as the Canadian Association of Internet
Providers, Industrie Canada, the federal Privacy Commissioner and the
federal Department of Justice" and that these actions are "clearly
abusive and constitute harassment of our client". He goes on to tell me
that Inter.net Canada Ltd. "will take action against you to recover any
and all damages that it will suffer as a result of your actions".

This letter threatens me with what is known as a SLAPP (Strategic
Lawsuit Against Public Participation). Fifteen US States have
anti-SLAPP legislation because this tactic is recognized as an abuse of
libel law and an abuse of the courts. While I certainly understand why
Inter.net Canada Ltd. would want to have the circumstances of my dispute
withheld from the public eye, nevertheless it is my right to bring this
issue to both government and public attention (through media). This is
one of the key ways effective marketplace discipline is achieved: by
informing other consumers of my experience and by bringing gaps in
legislation to the attention of appropriate branches of government.
Defamation and libel laws prohibit us from harming another by lying, not
from bringing forward facts.

This letter also captures the problems inherent in this issue remarkably
well: it was sent to me via email and the firm's own disclaimer on the
message states ...'the use of e-mail is considered by the firm as an
adequate means of communication, equivalent to regular mail'.

I don't think that there is a single democracy in the world that allows
for the interception of personal communication without a warrant. This
principle is deeply ingrained in our social consciousness; not only do
the customs of society enforce our expectation that private
communication will not be intercepted, statute laws are in place to
guarantee it. As a senior official at Industry Canada put it: "Laws
regarding interference with the mails were put into place to ensure
confidence in a system which is fundamentally important to the pursuit
of commerce and to limit the potential collateral damage from
non-delivery of important messages".

It's on these well established principles that we have built many of the
fundamental elements of our social, economic and cultural
infrastructure. That the majority of ISPs are acting in contradiction
of these basic principles when they deliberately intercept and withhold
communication is a serious concern. The claim by ISPs that this
practice is a 'service' that benefits the majority of their customers
whose accounts they have suspended seems to me, at best, disingenuous.

I don't, and nor will the courts, expect ISPs to provide service to
accounts that are in default. Taking my case against Inter.net Canada
Ltd. to Federal Court is to address the *purposeful* collection and
retention of customer's email after they are shut out of their account.
It focuses on two goals: 1) I believe I was harmed by Inter.net's action
and am asking the court for damages that I have mitigated appropriately,
and 2) In the face of overwhelming societal norms, existing statute law,
and the Privacy Commissioner's Report of Finding recommending this
practice be immediately ceased , ISPs continue to intercept
communication on a daily basis saying it is their right. Asking the
court for punitive damages is an appropriate and effective way to
establish and convey ISPs liability in the use of this policy - even in
punitive-reticent Canada. Nothing says I'll get them, but it is
important to ask and argue for them.

This policy of seizing customer's email and using it to leverage payment
from customers is standard practice in the ISP industry throughout the
world. The fact that the largest ISP in Canada, Sympatico, has
discontinued the practice since I began my pursuit of this issue
indicates that change can be made by bringing this issue to public
attention through media and the courts.

To learn more about how we can create change on this issue and force
ISPs to abandon this unconscionable practice, please contact me at my
email address below.